Agency-Level Bid Protests

Administrative Conference of the United States: Project Page

May 1, 2020 Report by Professor Yukins available from ACUS

This page is produced in conjunction with a study commissioned by the Administrative Conference of the United States (ACUS), of agency-level bid protests. The study was led by Professor Christopher Yukins (cyukins@law.gwu.edu), George Washington University Law School. The ACUS project is assessing agency-level bid protest procedures under the Federal Acquisition Regulation (FAR) and agency-specific regulations. The report produced by Professor Yukins to support the ACUS study drew on a number of interviews (interview briefing) of those experienced (both private- and public-sector) in agency-level bid protests. Professor Yukins’ report analyzed agency regulations governing various aspects of agency-level bid protests, including review above the level of the contracting officer, standard clauses governing protest procedures, and the exchange of information during protests. Professor Yukins’ report offered a series of options for agency-level bid protest procedures, and recommendations regarding when specific procedures may be appropriate for adoption.

The ACUS report was cited in the conference report accompanying H.R. 6395, National Defense Authorization Act for FY 2021, Section 886, which said that the ACUS report should be considered as part of a follow-on study by the U.S. Department of Defense, due by September 1, 2021:

“The conferees emphasize the potential benefits of a robust agency-level bid protest process. Accordingly, [a commissioned study by the Defense Department] should evaluate the following factors for agency-level bid protests: prevalence, timeliness, outcomes, availability, and reliability of data on protest activities; consistency of protest processes among the military Services; and any other challenges that affect the expediency of such protest processes. In doing so, the study should review existing law, the Federal Acquisition Regulation, and agency policies and procedures and solicit input from across the DOD and industry stakeholders. The conferees note that an academic study recently examined the agency-level bid protest process at various federal agencies, including the Department of Defense, and reported on that study to the Administrative Conference of the United States. The conferees direct the Department to consider these recommendations among those it might make to improve the expediency, timeliness, transparency, and consistency of agency-level bid protests. Not later than September 1, 2021, the Secretary of Defense shall provide the congressional defense committees with a report detailing the results and recommendations of the study, together with such comments as the Secretary determines appropriate.”

The report authored by Professor Yukins is also scheduled for publication in the Public Contract Law Journal.

This page is not authored or maintained by the Administrative Conference of the United States, and does not necessarily reflect the views of the Administrative Conference or the federal government.

ACUS Project Page, which includes:

ACUS draft recommendation (copy here)
Professor Yukins’ draft report (copy here)
Links to ACUS public meetings on the ACUS draft recommendation, scheduled to be held online on July 10 & 27, 2020

Table of Contents

Public Meeting Held on Project

ABA Bid Protest Committee Meeting – Agency-Level Bid Protests

Tuesday, October 15, 2019 – Registration 11:45 am

GWU Law School – 2000 H Street NW – Faculty Conference Center (Burns 5th floor)

The Administrative Conference of the United States (ACUS) is undertaking a study of agency-level bid protests, summarized here and coordinated by Professor Christopher Yukins (George Washington University Law School), with research assistance by GWU Law student Benjamin Smith. An open meeting of the American Bar Association (ABA) Bid Protest Committee will be held at GWU Law School at noon on October 15, 2019, to discuss possible reforms of agency-level bid protest procedures under the Federal Acquisition Regulation (FAR) and agency-specific regulations. Lunch will be provided.

The recording of the event is available at: https://www.youtube.com/watch?v=Qq7vdWzuSFM&feature=youtu.be

SLIDES – ABA Bid Protest Committee, 10/15/2019 Download

ABA Bid Protest Committee Announcement Download

Note: This meeting is not sponsored by the Administrative Conference of the United States.